SO YOUR POSITION IS THAT IT IS A QUESTION OF

"ANY MERCHANT WHO HAS REASON TO BELIEVE THAT MERCHANDISE HAS BEEN WRONGFULLY TAKEN BY AN INDIVIDUAL CONTRARY TO, THEN THE CITED SECTIONS, AND THAT HE CAN RECOVER SUCH MERCHANDISE BY TAKING SUCH INDIVIDUAL INTO CUSTODY AND DETAINING HIM MAY, FOR THE PURPOSE OF ATTEMPTING TO EFFECT SUCH RECOVERY OR FOR THE PURPOSE OF INFORMING THE PEACE OFFICER OF THE CIRCUMSTANCES OF SUCH DETENTION, TAKE THE

INDIVIDUAL INTO CUSTODY AND DETAIN HIM IN A REASONABLE MANNER AND FOR A REASONABLE LENGTH OF TIME. SUCH TAKING

1 0 I INTO CUSTODY AND DETENTION BY A MERCHANT OR HIS EMPLOYEE -I-I SHALL NOT RENDER SUCH MERCHANT OR HIS EMPLOYEE CRIMINALLY

1 2 OR CIVILLY LIABLE FOR FALSE ARREST, FALSE IMPRISONMENT, 13 SLANDER, OR LAWFUL DETENTION OR FOR ANY OTHER TYPE OF

1 4 CLAIM OR ACTION UNLESS THE CUSTODY AND DETENTION ARE 15 UNREASONABLE UNDER ALL THESE CIRCUMSTANCES."

16 SO YOUR POSITION IS THAT IT IS A QUESTION OF

1 7 FACT TO GO TO THE JURY AS TO WHETHER THE TAKING INTO

1Q CUSTODY IS UNREASONABLE UNDER ALL OF THE CIRCUMSTANCES?

19 MR. DE MONTREUX: YOUR HONOR, I DON'T BELIEVE

2 0 THAT'S THE ISSUE BEFORE YOU. THE ISSUE IS WHETHER OR NOT

21 THEY HAD REASON TO STOP. WHEN YOU STUDY THAT STATUTE, IN

2 2 THAT VERY FIRST LINE YOU SAID, "IF THE MERCHANT HAS A REASON TO BELIEVE."

JUDGE YOUNG: OKAY. NOW DON'T I HAVE TO START WITH THE PROPOSITION THAT THE MERCHANT HAS A REASON TO 23

24 25

19

1 BELIEVE, WHEN THE MERCHANT SAW SOMEONE WALK THROUGH THE 2 CHECKOUT COUNTER WITH CURLERS THAT WERE THEN NOT PAID FOR, 3 EVEN THOUGH THE PERSON WENT DIRECTLY TO THE SERVICE DESK?

4 MR. DE MONTREUX: THE MERCHANT CAN AND HAS--THE 5 MERCHANT HAS AT HIS DISPOSITION EVERY TOOL AVAILABLE TO 6 FIND OUT THAT AN EXCHANGE WAS MADE EITHER BY CHECKING OUT 7 WHERE THE CUSTOMER DESK IS AND ASKING, WAS AN EXCHANGE 8

MADE--9 JUDGE YOUNG: WELL NOW, THE MERCHANT DOESN'T 10 HAVE THE LUXURY OF TIME ON THAT. WHEN THE PERSON IS 11 LEAVING THE STORE AND HAS WALKED THROUGH THE CHECKOUT 12 COUNTER WITH A NEW CONTAINER OF CURLERS, EVEN THOUGH THE 13 EMPLOYEE MADE THE MISTAKE, ADMITTEDLY AND OPENLY NOW, THEN 14 DON'T THEY HAVE THE RIGHT TO BELIEVE THAT WHEN THEY

15 HAVEN'T CHECKED IT OUT PROPERLY AT THE PAYMENT COUNTER 16 THAT THEY MAY BE SHOPLIFTING?

17 MR. DE MONTREUX: YOUR HONOR, ASSUME FOR THIS 18 VERY SAME THING, AND IF YOU SO READ THE DEPOSITION, THE 19 CLIENT OFFERED TO LET THEM LOOK IN THE BAG, OFFERED TO 20 SHOW THEM THE RECEIPTS TO SHOW THAT EVERYTHING WAS 21 CORRECT, EVEN BEFORE MY CLIENT LEFT THE STORE.

22 JUDGE YOUNG: RIGHT.

23 MR. DE MONTREUX: THEY KNEW EVERYTHING. IF 24 THERE WAS ANYTHING ELSE, THEY HAD ALL THE TIME IN THE 25 WORLD TO DO WHATEVER THEY WANTED TO DO. THE FOLLOWING OF

1 MY CLIENT. MY CLIENT STOPPED AT THE CASH REGISTER, A 2 TELEPHONE CALL CAME TO THE CASHIER SAYING THAT APPARENTLY 3 TO INFER SOMETHING, SAYING THAT THOSE PEOPLE ARE MAYBE 4 SHOPLIFTING. MY CLIENT OFFERED TO LET THEM LOOK IN HIS 5 BAG. MS. PRIDDY CAME BACK WITH THE CURLER AND STAYED WITH 6 HIM AT THE CASH REGISTER. THAT IS ON THE FILM. EVERY-7 THING IS CORRECT. EVERYTHING IS DONE. EVERYTHING IS IN 8 THE PROPER BAGS. UNTIL THEY LEFT THE STORE. THERE WAS 9 AMPLE TIME TO VERIFY EVERYTHING. THERE WAS NO GROUNDS 10 WHATSOEVER. THE MERCHANT HAD NO GROUNDS TO STOP MR.

11 PRIDDY OUT THERE AND ACCUSE HIM OF SHOPLIFTING.

12 THE EVIDENCE IN ITS ENTIRETY, THE VIDEOTAPE, 13 EVERYTHING THAT HAPPENED IN THAT STORE CLEARLY SUPPORT 14 THAT THERE WAS NO REASONABLE GROUND TO STOP HIM. THERE 15 WAS AMPLE TIME TO INVESTIGATE. AN OFFER WAS MADE TO 16 VERIFY EVERYTHING, THAT ALL OF THE EXCHANGE WAS MADE.

17 IF WE ARE GOING TO READ THE STATUTE AS TO WHERE 18 THE MERCHANT CAN SIMPLY JUST ACT ON IMPULSE, EVEN THOUGH 19 THERE ARE NO REASONABLE GROUNDS, PEOPLE LIKE MY CLIENT 20 WOULD NEVER HAVE A CHANCE TO COME TO THIS COURT AND ASSERT 21 THEIR CLAIMS, YOUR HONOR.

22 JUDGE YOUNG: ARE YOU FINISHED?

23 MR. DE MONTREUX: SHALL I CONTINUE, YOUR HONOR?

24 JUDGE YOUNG: ARE YOU FINISHED WITH YOUR 25 I ARGUMENT?

21

1 MR. DE MONTREUX: NO. YOUR HONOR, THERE IS A 2 STANDARD FOR SUMMARY JUDGMENT IS THAT ALL REASONABLE

3 INFERENCE THAT SHOULD BE DRAWN FROM THE EVIDENCE SHOULD BE 4 VIEWED IN FAVOR OF THE NON-MOVING PARTY. WHEN YOU LOOK AT 5 THE EVIDENCE IN ITS ENTIRETY IT SUPPORTS MY CLIENT'S

6 POSITION.

7 DEFENDANT'S ARGUMENT IS THAT IN THE DEPOSITION 8 MY CLIENT DID NOT SAY THEY SAID, "I AM A THIEF." HOWEVER, 9 IN LOOKING AT CERTAIN PAGES OF THIS DEPOSITION YOU CAN SEE 10 THAT MY CLIENT, SHOPLIFTING--SHOPLIFTERS ARE SORT OF THE 11 ENTIRE DEPOSITION. FOR EXAMPLE, IF YOU ALLOW ME, I WILL 12 SHOW YOU AT PAGE 78 OF THE DEPOSITION THE QUESTION WAS, 13 "CAN YOU REMEMBER THE SUBSTANCE OF HER CONVERSATION?" AND 14 THE ANSWER IS, "THE SUBSTANCE OF THE CONVERSATION, WITHOUT 15 RECALLING THE EXACT WORDS WAS THAT, YOU KNOW, SHE HAD

16 OBSERVED US SHOPLIFTING, AN ATTEMPT TO SHOPLIFT.

1 7 "QUESTION: WAS SHE SAYING THAT TO THE STORE

18 MANAGER?

19 "ANSWER: SHE WAS SAYING THAT TO ANYBODY IN 20 EARSHOT.

21 "QUESTION: SHE OBSERVED SHOPLIFTING?

22 "ANSWER: YES, SHE OBSERVED SHOPLIFTING."

23 I EVERYTHING IN THIS CASE POINTS TO THE FACT THAT MY CLIENT DID SAY THAT THEY ACCUSED HIM OF SHOPLIFTING.

THE VERIFIED COMPLAINT ALLEGED THAT MY CLIENT WAS ACTUALLY 24

25

22

1 I SHOPLIFTING AT PARAGRAPH 10. THE AFFIDAVIT OF MY CLIENT 2 DOES NOT IN ANY

WAY--3 I JUDGE YOUNG: WHAT WAS THAT WORD?

4 | MR. DE MONTREUX: AFFIDAVIT. THE TESTIMONY THAT 5 I MY CLIENT GAVE SUPPORTS THE ANSWER. THAT IS NOT CONTRARY 6 TO THE DEPOSITION. IT DOES NOTHING BUT AMPLIFY IT.

7 YOUR HONOR, WE HAD AN EYE WITNESS AT THE CENTER, 8 AT THE VERY CENTER OF THIS DISPUTE. THE EYE WITNESS WAS 9 NOT DEPOSED. THAT EYE WITNESS, THEY HAVE SUPPLIED HER 10 TESTIMONY TO YOU, IN SUPPORT OF DEFENDANT--IN SUPPORT OF 11 PLAINTIFF, I'M SORRY. THE DEFENDANT HAS NOT ATTACKED THAT 12 AFFIDAVIT. THE DEFENDANT KNEW FROM THE VERY BEGINNING 13 THAT THAT WITNESS EXISTED. THE DEFENDANT HAS NOT DEPOSED 14 THAT WITNESS. THE WITNESS TESTIFIED SHE HEARD THAT MY 15 CLIENT WAS ACCUSED OF SHOPLIFTING IN THE PARKING LOT IN 16 FRONT OF THE GENERAL PUBLIC.

17 THERE IS A QUESTION OF PRIVILEGE, YOUR HONOR.

18 OF COURSE, A MERCHANT HAS A PRIVILEGE. HOWEVER, A PRIVI-19 LEGE SUBJECT TO ATTACK. AND THE LAW, I BELIEVE, WILL 20 RENDER WHERE THERE IS MALICE THERE IS NO PRIVILEGE. AND 21 THE FACT THAT THE EVIDENCE, THE VIDEOTAPE AND EVERYTHING 22 SHOWS THAT THE REASON WHY MR. PRIDDY WAS STOPPED IS

23 BECAUSE OF HIS RACE, MALICE. HE WAS FOLLOWED FOR SOME 45 24 MINUTES AND HE WAS STOPPED OUT THERE AND ACCUSED OF SHOP-25 I LIFTING WHEN THERE IS NO REASONS, NO GROUNDS TO ACCUSE HIM

23

1 OF IT. YOUR HONOR, THAT PRIVILEGE IS DIFFERENT.

2 AS FAR AS EMOTIONAL DISTRESS IS CONCERNED WE DID 3 PLEAD NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. IT IS 4 OUR INTENT TO AMEND OUR COMPLAINT TO ALLEGE INTENTIONAL 5 INFLICTION OF EMOTIONAL DISTRESS BECAUSE OF THE EVIDENCE 6 THAT WE HAVE DISCOVERED THROUGH DISCOVERY OF THIS CASE.

7 THANK YOU, YOUR HONOR.

8 JUDGE YOUNG: THANK YOU. DO YOU WISH TO REPLY, 9 MR. PIERCEY?

10 MR. PIERCEY: YES, YOUR HONOR. YOUR HONOR, THIS 11 IS EXACTLY THE SORT OF SITUATION THAT THE COURT IN WEBSTER 12 V. SILL TRIED TO ADDRESS IN PREVENTING A PLAINTIFF FROM 13 MOVING AWAY AND DISOWNING THE PLAINTIFF'S OWN TESTIMONY IN 14 A DEPOSITION. IN THE COMPLAINT--THIS WAS ONE OF THE

15 PROBLEMS THAT GAVE RISE TO THE TAKING OF THE DEPOSITION.

16 IN THE COMPLAINT THE ALLEGATION IS THAT THERE 17 WAS A LOUD ACCUSATION OF SHOPLIFTING AND THERE WERE

18 LETTERS BACK AND FORTH, BUT THERE WAS NOTHING EVER SAID 19 ABOUT THE WORDS OR THE WORDS TO THAT EFFECT THAT WERE

20 SPOKEN. AND THIS IS--WE'VE CITED THE BOISJOLY CASE, JUDGE 21 WINDER'S DECISION, ABOUT IT'S IMPORTANT TO HAVE PARTICU-22 LARITY WHEN YOU'RE TALKING ABOUT SLANDER BECAUSE IF YOU'RE 23 SAYING YOU WERE SLANDERED YOU OUGHT TO SAY WHAT THOSE

24 WORDS WERE. AND THE REASON FOR TAKING THE DEPOSITION WAS 25 TO GET PAST THIS "LOUDLY ACCUSED," BECAUSE AS THE

24

1 PLAINTIFF'S DEPOSITION SHOWS THE WORDS, IN FACT WHAT HE 2 SAYS IS, SOMETIMES WHAT'S NOT SAID IS MOST IMPORTANT HERE.

3 SO AS FAR AS THE PLAINTIFF IS CONCERNED HE THINKS, HE 4 THOUGHT THAT IT IS NOT IMPORTANT WHETHER OR NOT HE WAS 5 CALLED A THIEF, WHAT'S IMPORTANT IS HE FELT THAT WAY, I 6 GUESS. SO THE REASON FOR THE DEPOSITION IS TO GET OVER 7 THAT AND FIND OUT WHAT WAS SAID.

8 JUDGE YOUNG: LET ME ASK YOU THIS. SUPPOSE, 9 GIVEN THAT ALL OF THEIR EVIDENCE MUST BE VIEWED IN THE 10 LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY, IF IT IS 11 TRUE THAT THE STORE HAD OBSERVED HIM BY VIDEOTAPE FOR 45 12 MINUTES, AND THE VIDEOTAPE DOES NOT SHOW ANY ACTIVITY THAT 13 WOULD BE AKIN TO SHOPLIFTING, WHAT REASONABLE BASIS IS 14 THERE, WHAT REASON TO BELIEVE, AS THE STATUTE REQUIRES, IS 15 THERE THAT WOULD ALLOW THE EMPLOYEES TO CONCLUDE THAT

16 THERE HAD BEEN THE POTENTIAL OF SHOPLIFTING? JUST THE 17 WALKING THROUGH THE COUNTER?

18 MR. PIERCEY: YOUR HONOR, THERE IS--YES. I 19 THINK THAT'S CORRECT.

20 JUDGE YOUNG: OKAY. NOW LET ME JUST TAKE IT ONE 21 STEP FURTHER. SHOULDN'T I REQUIRE THIS MATTER THEN TO GO 22 TO A JURY TO DECIDE WHETHER THAT ACTION FORMED AN ADEQUATE 23 BASIS, THAT'S A FACTUAL QUESTION, AN ADEQUATE BASIS FOR 24 THE EMPLOYER, OR THE MERCHANT, TO BELIEVE REASONABLY THAT 25 MERCHANDISE WAS BEING WRONGFULLY TAKEN?

25

1 MR. PIERCEY: YOUR HONOR, I THINK THERE ARE TWO